MWH GLOBAL, INC. v. USA

Filing 45

REPORTED OPINION denying 34 Motion for Discovery.. Signed by Judge Thomas C. Wheeler. (ad) Copy to parties. (Main Document 45 replaced on 8/31/2017 to correct typo in pdf) (ar).

In the United States Court of Federal Claims
No. 15-1070C
(Filed: August 31, 2017)
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MWH GLOBAL, INC.,
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Plaintiff,
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v.
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THE UNITED STATES,
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Defendant.
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Motion for Leave to Take
Additional
Depositions;
RCFC 30(a); RCFC 26(b);
Prejudice to Non-Movant.

Stephen W. Pickert, with whom was Anthony R. Kovalcik, Moye, O’Brien, Pickert &
Dillon, LLP, Maitland, Florida, for Plaintiff.
Joseph A. Pixley, with whom were Chad A. Readler, Acting Assistant Attorney General,
Robert E. Kirschman, Jr., Director, and Franklin E. White, Jr., Assistant Director,
Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Washington,
D.C., and Kim J. Sabo, Of Counsel, U.S. Army Corps of Engineers, Chicago, Illinois for
Defendant.
ORDER ON MOTION FOR LEAVE TO TAKE ADDITIONAL DEPOSITIONS
WHEELER, Judge.
On September 25, 2015, MWH Global, Inc. (“MWH”) brought this action under the
Contract Disputes Act challenging the U.S. Army Corps of Engineers’ (“USACE”) final
decision that MWH owes the USACE $11,317,141.76 in damages resulting from an alleged
negligent design defect in a water management project in Chicago. Dkt. No. 1. The parties
are currently engaged in discovery, which began in May 2016.
Currently before the Court is the Government’s motion for leave to take additional
depositions beyond the ten allowed under RCFC 30(a)(2)(A)(1). Specifically, the
Government wishes to depose “three additional fact witnesses, one of whom is a current or

former MWH employee, who has relevant information as it pertains to damages” and two
fact witnesses associated with the construction contractor for the project. Gov.’s Mot. at
3. The Government believes it can take these additional depositions by the September 29,
2017 deadline for the completion of fact discovery. Id. at 4.
“Questions of the scope and conduct of discovery are, of course, committed to the
discretion of the trial court.” Florsheim Shoe Co. v. United States, 744 F.2d 787, 797 (Fed.
Cir. 1984). However, pursuant to RCFC 26(b)(2) a court should consider whether:
(i) the discovery sought is unreasonably cumulative or
duplicative, or is obtainable from some other source that is
more convenient, less burdensome, or less expensive; (ii) the
party seeking discovery has had an ample opportunity . . . to
obtain the information sought; or (iii) the burden or expense of
the proposed discovery outweighs its likely benefit . . . .
System Fuels, Inc. v. United States, 73 Fed. Cl. 206, 218 (2006) (quoting RCFC 26(b)(2)).
The party seeking discovery must specify “what information it seeks” and explain why
“the information sought would not be obtainable from some other source that is more
convenient, less burdensome, or less expensive.” Id. In System Fuels, the Government
“[did] not directly address the criteria on which this court must base its decision, leaving
this court to glean scattered kernels of pertinent information . . . .” Id.
As in System Fuels, the Government offers no information in its motion that would
allow the Court to evaluate the Rule 26(b)(2) factors. The Government here merely asks
for more depositions and asserts that “there can be no question of any prejudice to MWH
by our reasonable request to take additional depositions” without any explanation. Gov.’s
Mot. at 4. As MWH points out, the Government’s motion provides no information from
which the Court can reasonably assess the necessity of additional depositions. Pl.’s Resp.
at 1-3. In its reply, the Government names the individuals it would like to depose and what
relevant information it believes the witnesses possess, however the Government still does
not address the RCFC 26(b)(2) factors. Gov.’s Reply at 1-3. The mere fact that individuals
have relevant information tells the Court nothing about whether the discovery sought is
“unreasonably cumulative”, burdensome, or whether the Government had “ample
opportunity” to obtain the sought information in another way. RCFC 26(b)(2). The
Government has not even provided “scattered kernels of pertinent information” for the
Court to evaluate. System Fuels, 73 Fed. Cl. at 218.
Further, as of the filing of its motion, the Government has only taken six depositions,
five of which were MWH witnesses and one of which was a former employee for the
construction contractor, and are currently scheduling depositions for “four MWH
witnesses”. Gov.’s Mot. at 3. Therefore, in total, the Government seeks to depose ten
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MWH witnesses and three witnesses affiliated with the construction contractor. This is
unnecessary and overly cumulative, especially given that five of the ten proposed MWH
witnesses have not yet been deposed. Instead of seeking to expand its allowable discovery,
the Government should carefully and efficiently conduct its ten depositions as provided by
the Rules of this Court.
Finally, MWH has convinced the Court that it would suffer prejudice if the Court
granted the Government’s motion. Initially, the Government stated that it intended to take
no more than ten depositions in accordance with RCFC 30. Dkt. No. 13, at 10. The
Government then waited until July 19, 2017 to begin taking depositions and did not request
to depose any MWH witnesses until July 2017. Pl.’s Resp. at 1-2. Meanwhile, MWH was
taking depositions in accordance with RCFC 30 by “wait[ing] to see what a witness
testified to before turning to the next witness.” Id. at 1. According to MWH, “[h]ad the
Government not waited until July 2017 to try to take more depositions than the Rule
allowed, MWH would have approached discovery in a much different fashion.” Id. It is
clear that MWH assumed that each party would take only ten depositions and conducted
its discovery with that limitation in mind. Id., Ex. A (email from MWH’s counsel to the
Government’s counsel dated August 17, 2017) (“You have already taken [six] out of the
[ten] depositions you get. Which four of those listed do you wish to take?”); see also Id.
(“We do oppose [a motion for leave to take additional depositions] especially since you
waited so long to make it known that this would be your intention.”). Therefore, MWH’s
ability to properly develop its claim would be affected by allowing the Government to take
additional depositions this late in discovery.
For these reasons, the Government’s motion is DENIED. Fact discovery shall end
on September 29, 2017 and each party is limited to ten depositions. As is proper procedure
in any deposition, the Government will have the opportunity to cross-examine any witness
MWH deposes but any cross-examination of a witness not included in the Government’s
ten allowable depositions is limited to the scope of MWH’s direct examination.
IT IS SO ORDERED.
s/ Thomas C. Wheeler
THOMAS C. WHEELER
Judge

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